NYC Subway Searches: A Response to Dan

1. Dan’s primary beef appears to be with Judge Berman’s deference toward the government’s weighing of risks of terrorism on the subway, and the likely effects of random bag checks. Dan says that “if the court defers to the government in this regard, it is essentially rubber-stamping the government in this determination.” I think this significantly overstates what the court actually did. The two places where the court really defers to the government are: (1) determining that terrorists are risk averse (Op. at 24); and (2) random searches “add uncertainty and unpredictability to the planning an implementation of a terrorist attack, which, in turn, increases the risk of failure and helps to deter an attack.” (Id.)

I’ve previously argued that these conclusions flow from behavioral research, and I find it unsurprising that the Judge would credit the government’s experts and discount those of ACLU. It isn’t as if the Judge completely ignored the plaintiffs’ contentions and genuflected to the NYPD’s authority. Plaintiffs’ witnesses, as discussed in the opinion, just didn’t have the necessary expertise to rebut powerful testimony from experienced law enforcement officers. A few testified to personal experience with the “intrusive” search policy and their resulting anxiety; one, an attorney and expert in transit design, testified that individuals can “easily evade” the checkpoints; and one, a consultant with a security company, testified that because “you can walk away” from an inspection, the deterrent effect is “close to zero.” (Op. at 19.) However, this last witness had “no discernable training or experience in subway transit security” has “never had access to classified intelligence about terrorism” and (tellingly) has never “evaluated intelligence information for the purpose” of advising on counter-terrorism measures. (Op. at 19.) In short, the court deferred to the government’s experts because they were significantly better informed about the relevant risks than plaintiffs’ experts. That’s simply the way the adversary system works: it isn’t a rubber-stamp.

2. Dan’s second argument concerns the value of marginal deterrence of attacks on the subway. He wonders: “[i]s it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?” This is obviously a tough choice, on many levels, and it is cold blooded and unpleasant to contemplate. (For more on this, see the work of Jonathan Baron.) But it is a decision I ultimately think ought to be left to democratic policy-makers in the sunlight of the public space, and not ill-informed judges in the quiet of the judicial chambers. The NYC subway is essential to the life of the City: it is “the largest, most heavily used subway system in the United States”; its disruption could have “widespread economic consequences . . . and create public fear and demoralization.” (Op. at 8.) If forced to the tragic choice, and if I still lived in NYC, I’d much prefer that resources be spent protecting the subway than a mall. I’m happy that I don’t have to make that choice and live with the consequences, but someone does, and NY politicians seem a good choice. New Yorkers learned of this policy before the last election. If they thought its cost-benefit calculus was as out of whack as Dan suggests, perhaps the result of the vote would have been different.

3. Dan finally argues forcefully that “I don’t believe that ‘minimal’ [privacy loss] can describe a massive program of random searching of people’s baggage.” The Court’s arguments in this regard are: (1) notice (Op. at 38); (2) random selection (Id.); (3) the right to refuse; (Op. at 39); and (4) limited scope of a brief search to determine if there are explosives present. Dan may feel that privacy loss is social, i.e., that minimal personal intrusions ought to be added up, to create an interpersonal mix of disutility. But it is not clear to me that this is possible or that this should be the law. To the extent that we’re talking about individual privacy loss, I agree that the court is somewhat cavalier about the choice to exit the search and the subway, which is in tension with the opinion’s recognition of the subway’s central importance to the life of ordinary New Yorkers. But still, it seems like a very small price to pay for increased safety.

Also, when reading the decision it occurred to me that the police likely were happy to be sued in this case, because it increased attention paid to the program, got extra media exposure, and generally made it somewhat more likely that the program will have the deterrent effects its boosters claim for it.

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Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

4 Responses

You’re tiptoeing around the fact that this is a random, suspicionless search with total discretion by rank-and-file police. That is totally unheard of in America and every Fourth Amendment precedent, every single one, argues against it.

So much for concurring opinions . . . I’ve been attacked by not only one co-blogger, but two. Earlier on, I posted a critique of the court’s decision upholding the NYC subway searching policy against a Fourth Amendment challenge. Jason…

There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…

There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…